Disability rights
Rights that are recognised internationally: the UN Disability Convention
Enforcing your rights under the UN Disability Convention
What can I do if my rights under the UN Disability Convention have been breached?
You can complain to the UN Committee on the Rights of Persons with Disabilities (we call this the “UN Committee”).
The UN Committee is made up of 18 people who are human rights experts.
The UN Committee can’t order the New Zealand government to do particular things, but it can make recommendations. The Committee’s recommendations are important. The UN monitors whether a particular government has followed these recommendations.
How do I make a complaint to the UN Committee?
The Office of the Ombudsman has created a guide that explains how to make a complaint to the UN Committee. The guide is available in te reo Māori, in Easy Read, as a video with New Zealand Sign Language, and as an audio file.
The guide is available on the on the Ombudsman’s website, under “making a complaint to the UN Disability Committee”.
Explore your options to complain in New Zealand before complaining to the UN Committee
You have to try and explore the options you have available in New Zealand before you complain to the UN Committee. For example, if you can go through the New Zealand court system, or tell relevant national authorities about your complaint (such as the Human Rights Commission), you should do that first.
If these options aren’t realistic (for example, if it would take an unreasonable amount of time, or if it’s unlikely to be effective or successful), you can go straight to the UN Committee.
For example, in the Australian case discussed below, the people who complained to the UN Committee didn’t have to go through Australia’s court systems first because, due to some specific exceptions in the Australian law, their case would not have been successful. The UN Committee agreed to hear their complaint without them having to go through the Australian courts first.
What options do I have to complain in New Zealand?
You can go to:
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- the Ombudsman – their recommendations are taken seriously, and government agencies usually follow them. For more information about the Ombudsman, see: “The Ombudsman: Watchdogs over government”.
- the Human Rights Commission – like the UN Committee, they can’t order the government to do things, but they can put some significant pressure on it. For more information about the Human Rights Commission, see: “Going to the Human Rights Commission”.
- the Human Rights Review Tribunal – if the Human Rights Commission isn’t able to resolve your complaint, you can go to the Human Rights Review Tribunal. If the Tribunal agrees with you, it can make various orders. The orders that are available to the Tribunal depend on who the complaint is against. For more information, see: “Going to the Human Rights Review Tribunal”.
- the courts and tribunals – depending on the context, you may be able to bring a claim in the New Zealand courts and/or tribunals, such as the Employment Relations Authority, discussed further below.
How long will it take to go to the UN Committee, and what might happen?
It’s a slow process that takes several years. If you succeed in your complaint, the UN Committee can make recommendations to the government. Technically, the government doesn’t have to follow these recommendations, but in practice they are expected to.
The New Zealand government’s Office for Disability Issues says that by signing up to the Optional Protocol, national governments have accepted that they usually should “respect the Committee’s findings”.
There’s also a monitoring process so that the Committee can check up on whether a government has followed the recommendations.
Example: Complaining to the United Nations under the Disability Convention
Cases: Beasley v Australia CRPD/C/15/D/11/2013 – Lockrey v Australia CRPD/C/15/D/13/2013
Although these cases are from Australia, it’s useful for us to know about them in New Zealand, as they show what kinds of cases the UN Committee will consider.
Two members of the Australian Deaf community, Gemma Beasley and Michael Lockrey, were rejected for jury service in Australia because of their impairment. Gemma Beasley requires Australian Sign Language (Auslan) interpreting, while Michael Lockrey requires real-time steno-captioning. In Australia, both were told that the court and jury systems couldn’t accommodate them.
They complained about it to the UN Committee on the Rights of Persons with Disabilities. Both were represented by the Australian Centre for Disability Law, and brought separate but very similar complaints. They said that the way they were treated breached their right to equality, as guaranteed under article 5 of the Disability Convention. The UN Committee upheld both of the complaints (meaning they agreed that Gemma and Michael’s treatment had been a breach of their rights).
This took three years, from bringing the complaints in April 2013, to the Committee’s decisions in April 2016.
The first hurdle: Had they exhausted all their options under Australian law?
The UN Committee can’t consider a complaint if the person complaining still has options they can pursue using the courts and official authorities in their particular country.
In Beasley’s and Lockrey’s cases, the Australian government argued that that rule prevented the UN Committee hearing their complaint, because the two could still take a case under Australia’s own discrimination laws through to the top Australian courts. But the two complainants said they’d been told by lawyers they didn’t have any reasonable chance of succeeding, because of the exceptions in Australia’s discrimination laws for a “public duty or obligation” like jury duty.
The UN Committee agreed with the Deaf complainants, who had essentially objected that they shouldn’t have to waste a lot of time and money taking cases through the Australian court system that had little chance of success.
Had the Australian government made “reasonable accommodations”?
The Australian government claimed they had made reasonable accommodations for Deaf people doing jury duty. The UN Committee wasn’t impressed by this claim, and said the government hadn’t provided any details or evidence to back it up.
The Committee said the adjustments made so far did not enable the complainants to participate equally on juries. The Committee noted that Auslan interpreting is a common accommodation, often used by Australian deaf people in their daily lives, and that steno-captioning is not a novelty either. The government had refused to provide Auslan interpreting or steno-captioning without thoroughly assessing whether that would mean a “disproportionate or undue burden” (in other words, an unreasonable accommodation). This amounted to disability-based discrimination, and so it breached the UN Disability Convention.
What did the UN Committee’s decision mean in practice?
The UN Committee can only make recommendations about what should happen. It recommended that the Australian government enable the complainants to participate in jury duty, providing them with reasonable accommodation in the form of Auslan interpreting and steno-captioning at all stages of jury selection and the court process. It also recommended it reimburse the complainants for their legal costs, and pay them some compensation. However, in this case, the Australian Government did not accept the recommendations.
Note: In New Zealand, the court system provides support to Deaf people to enable them to serve on juries. The court staff can arrange a sign language interpreter for you. The court can also give you a seat near the witness or judge, or arrange sound reinforcement. You can call the court staff using the “NZ Relay” system, which provides various ways for Deaf or hearing-impaired people (as well as Deafblind and speech-impaired people) to communicate with others. The court system also provides support for other disabilities – for example, providing documents in other formats (like Braille or bigger type) if you’re vision impaired, or using an accessible court room if you’re mobility-impaired. If you require any of this support, you should let the court know in advance so that they can make arrangements. For more information, see the Ministry of Justice website under “language and disability access”.
